Don't forget to Submit the I-944 and/or I-864 with your I-485

The public charge rule has now gone into effect, bringing some changes to the immigrant petition process.  For many applicants present in the US, Form I-485 (Application to Register Permanent Residence) must now be filed with Form I-944 Declaration of Self-Sufficiency and Form I-864 Affidavit of Support.

The I-485 application is filed to request for adjustment of status to permanent resident in the US.  Any I-485 application must have an approved underlying immigrant visa petition, the most common ones being filed by family members (I-130) and employers (I-140). Generally, Form I-485 based on a petition for a family member must be filed with both I-944 and I-864 to prove financial support, including those who are K-1/K-2 fiance visas. Most employment-based petitions will only need to include Form I-944 with the I-485 application. There are exemptions from having to file one or both of the forms, depending on circumstances.

Applicants do not need to file Form I-864 if they have 40 quarters of work in the United States, not including quarters where certain public benefit was received. 40 quarters of work is equivalent to roughly 10 years of paying into social security. An example would be someone who has worked 40 quarters under H-1B status before applying for a green card. He/she would not need to file Form I-864. Children of U.S. citizens who are unmarried and under 18 years-old are also exempt from filing I-864, provided they will become citizens upon admission.

Employment-based applicants typically need to file Form I-944 but not Form I-864. Those whose underlying I-140 was filed by a relative or who have 5% or more ownership in the petitioning business must file both forms.  The I-864 sponsor in this case must be applicant's spouse, parent, child, brother or sister. I-864 is not required if the relative is a brother or sister who is a legal resident of the US (rather than a citizen).

Some other notable categories of applicants that must file I-944 but not I-864 are widows/widowers of US citizens, those under the Diversity Visa program, foreign entrepreneurs (Form I-526), and certain special immigrants.

Some applicants are exempt from filing both I-864 and I-944 including asylees, refugees,  human trafficking victims (T visa), applicants under the Cuban Adjustment Act, etc.  U nonimmigrants and VAWA self-petitioners are as well, except, as discussed earlier, if they are employment-based applicants with family or ownership (at least 5% shares) relation with the petitioning entity.

The above describes the most common situations. Several other specific categories do not need to file one or both of the forms. Anyone planning to file Form I-485 should read the form instructions closely to determine what applies to him/her. Obtain professional legal help if necessary to ensure proper submission of application forms and information. 

Immigrants Must Disclose Their Financial Information in Form I-944

For many foreign nationals, the U.S. immigration process is synonymous with endless application forms and documentation. Recent implementation of the Public Charge Grounds final rule means that intending immigrants have to deal with yet another form, the I-944 Declaration of Self-Sufficiency.  

DHS first published the Public Charge rule on 10/10/2018.  Despite strong opposition from the immigrant groups and fierce litigation, the U.S. Supreme Court cleared all roadblocks and allowed the rule to take effect on 02/24/2020.  

The new rule applies to applicants of both immigrant and non-immigrant visa / status inside and outside of the United States.  For visa applicants in overseas American Consulates, DOS has implemented an Interim Final Rule and created a new Form DS-5540, Public Charge Questionnaire, for them to complete.

Applicants for adjustment of status (I-485) in the United States must now complete the Form I-944 to prove that they are financially sufficient and are not likely to depend on public benefits. 

The 18-page long I-944 form questions everything about the applicant's financial status including their assets, debts, income level, education, special skills, language ability, etc.

Income includes income from both legal and illegal activities.  Debts include mortgages, auto loans, credit card loans, personal loans, etc.  The form also asks for the income and asset information of the household members of the applicant.

In addition, applicants must also provide their recent credit reports and credit scores.  Unfavorable credit history or low credit scores must be explained.  Previous bankruptcy filings must also be disclosed.

Applicants must also provide information about their medical health insurance, the annual deductibles and premiums.  Those who don't have proof of health insurance must explain how they plan to pay for their medical expenses.

The I-944 form also specifically asks if the applicant has received any public benefits. Those who have received cash benefits such as SSI, Section 8 housing assistance, Food Stamps, TANF, etc., must report the details of the benefits received.  Applicants who have previously applied for or certified for these benefits, even if their applications were denied, must provide the relevant information.

In addition to completing the form, applicant must also provide supporting documents such as tax return transcripts, credit reports, proof of assets and liabilities, public benefit documents, health insurance policy, etc.

It is too early to fully understand how the government may use the I-944 information to determine an applicant's ability to be support himself. Applicants should review their financial situation carefully before submitting their immigration petitions.  Issues such as receipt of public assistance, serious health issues not covered by health insurance, high debt level, poor credit score, etc. are red flags and should be addressed as early as possible.